Filed: Feb. 01, 2017
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WELLS FARGO BANK, N.A., ) ) Appellant, ) ) v. ) Case No. 2D15-4222 ) LISA G. GUESS and MICHAEL S. ) GUESS, ) ) Appellees. ) ) Opinion filed February 1, 2017. Appeal from the Circuit Court for Pasco County; Linda Babb, Judge. Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellant. Mark P. Stopa of Stopa Law F
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT WELLS FARGO BANK, N.A., ) ) Appellant, ) ) v. ) Case No. 2D15-4222 ) LISA G. GUESS and MICHAEL S. ) GUESS, ) ) Appellees. ) ) Opinion filed February 1, 2017. Appeal from the Circuit Court for Pasco County; Linda Babb, Judge. Dean A. Morande and Michael K. Winston of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellant. Mark P. Stopa of Stopa Law Fi..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WELLS FARGO BANK, N.A., )
)
Appellant, )
)
v. ) Case No. 2D15-4222
)
LISA G. GUESS and MICHAEL S. )
GUESS, )
)
Appellees. )
)
Opinion filed February 1, 2017.
Appeal from the Circuit Court for Pasco
County; Linda Babb, Judge.
Dean A. Morande and Michael K. Winston of
Carlton Fields Jorden Burt, P.A., West Palm
Beach, for Appellant.
Mark P. Stopa of Stopa Law Firm, Tampa,
for Appellee Lisa G. Guess.
No appearance for remaining Appellee.
CASE, JAMES R., Associate Senior Judge.
In this mortgage foreclosure action, Wells Fargo Bank, N.A. (Wells Fargo),
appeals an order of dismissal entered in favor of the borrowers, Lisa and Michael
Guess. The trial court granted Lisa Guess's motion for summary judgment on the basis
that Wells Fargo failed to comply with section 559.715, Florida Statutes (2012). The
notice requirement described in section 559.715, however, is not a condition precedent
to foreclosure. Brindise v. U.S. Bank Nat'l Ass'n,
183 So. 3d 1215, 1221 (Fla. 2d DCA
2016). Accordingly, we reverse the trial court's order granting summary judgment and
the resulting dismissal and remand this case for further proceedings.
Guess argues that we should nonetheless affirm the trial court's dismissal
order on account of Wells Fargo's failure to substantially comply with paragraph 22 of
the mortgage, which provides, in pertinent part:
22. Acceleration; Remedies. Lender shall give notice to
Borrower prior to acceleration following Borrower's breach of
any covenant or agreement in this Security Instrument (but
not prior to acceleration under Section 18 unless Applicable
Law provides otherwise). The notice shall specify: (a) the
default; (b) the action required to cure the default; (c) a date,
not less than 30 days from the date the notice is given to
Borrower, by which the default must be cured; and (d) that
failure to cure the default on or before the date specified in
the notice may result in acceleration of the sums secured by
this Security Instrument, foreclosure by judicial proceeding
and sale of the Property. The notice shall further inform
Borrower of the right to reinstate after acceleration and the
right to assert in the foreclosure proceeding the
non-existence of a default or any other defense of Borrower
to acceleration and foreclosure.
We disagree. Wells Fargo filed an affidavit in response to Guess's motion for summary
judgment and attached a default letter that Wells Fargo had mailed to Guess. Although
the default letter does not explicitly state that the property might be sold, the letter
unambiguously complies with all other requirements of paragraph 22. The letter also
states that the Guesses will lose their interest in and rights to the property in the event
of foreclosure. On these facts, we are not persuaded that Wells Fargo failed to
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substantially comply with the requirements of paragraph 22 of the mortgage. See
Green Tree Servicing, LLC v. Milam,
177 So. 3d 7, 15 (Fla. 2d DCA 2015).
Reversed and remanded.
VILLANTI, C.J., and NORTHCUTT, J., Concur.
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